LEAMING, V. C.
(Syllabus by the Court.)
Bill by Wesley B. Porch against the Agnew Company. Application for an allowance of a counsel fee for presentation of claim against the receiver of the defendant to be included in the costs. Motion denied.
See 61 Atl. 721.
Du Parquet, Huot & Moneuse Company filed with the receiver of defendant, an insolvent corporation, a verified claim, in which the claimant asserted a mechanic's lien against certain real estate of the insolvent company. Clarence M. Busch, a mortgagee of the same real estate, unsuccessfully contested the claim before the receiver. From the receiver's decision Busch appealed to this court under the provisions of section 78 of the corporation act of 1896 (P. L. 1896, p. 302), and the decision of the receiver was here affirmed. Busch then appealed to the Court of Appeals, and the decision of this court was there affirmed. Application is now made under section 91 of the chancery act of 1902 (P. L. 1902, p. 540) for an allowance of a counsel fee for Du Parquet, Huot & Moneuse Company to be included in the taxable costs.
William M. Clevenger, for the motion. Thompson & Cole, opposed.
LEAMING, V. C. (after stating the facts). Section 91 of the chancery act (P. L. 1902, p. 540) allows a counsel fee to be fixed by the Chancellor and included in a complainant's taxable costs. In McMullin v. Doughty, 68 N. J. Eq. 776, 55 Atl. 115, 284, 64 Atl. 1134, the Court of Appeals sanctioned the allowance under this section, of a counsel fee to complainant in a partition cause prosecuted in this court. The allowance of a counsel fee to the present applicant should manifestly be made if authority can be found to support it; but the statute in terms applies only to complainants, and I am unable to discern any legislative purpose to extend the provisions of the section in question beyond the primary and natural significance of the language used. One who files a claim with a receiver, and who is afterwards obliged to support his claim before this court on appeal, occupies a position similar to a complainant in a bill in equity to the extent that he has the affirmative of an issue to sustain; but such similarity is not based upon any principles peculiar to equitable remedies. His claim may be, and usually is, a strictly legal claim, with no inherent element to confer equitable jurisdiction. The claim now in question was such a claim. The procedure is purely statutory, and is, by the statute, described as "summary." It is clear that the present applicant can only be brought within the provisions of the section by treating the section as an enactment intended to apply to all successful litigants in a court of equity except defendants. I am unable to find any justification for so broad an interpretation of the section. The motion must be denied.
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